Mrs Mini Joseph v Plenty Valley Community Health Ltd

[2015] FWC 3599

[2015] FWC 3599

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Mini Joseph
v
Plenty Valley Community Health Ltd
(U2014/10943)

COMMISSIONER WILSON MELBOURNE, 27 MAY 2015

Application for recusal of FWC Member on the ground of apprehended bias and failure to accord procedural fairness and natural justice..

Introduction

[1] This decision concerns an application by Mini Joseph, the Applicant in an unfair dismissal application against her former employer, Plenty Valley Community Health Ltd, that I disqualify myself from further hearing of her matter, for reason of apprehended bias and a failure to accord her with procedural fairness or natural justice.

[2] For the reasons set out in this decision, I refuse Ms Joseph’s application to disqualify myself from hearing her application for an unfair dismissal remedy. Ms Joseph’s matter will remain listed before me, and will proceed by way of determinative conference on 27 May 2015 and with the continuation of the Directions already given to the parties.

[3] Ms Joseph’s dismissal from employment with Plenty Valley Community Health took effect on 27 June 2014, having been notified to her shortly before, on 25 June 2014. Correspondence to Ms Joseph from Plenty Valley Community Health’s Interim Chief Executive Officer advised Ms Joseph that the reason for her dismissal was;

“A meeting was held with you following an incident which occurred on 20 June 2014. It was noted at that meeting that earlier in the day you were observed restraining a client by your Manager, Jackie Gravatt. You were observed grabbing a client around the shoulders and eventually around the neck as you tried to move the client away from a desk. You were advised at the meeting that such conduct towards clients is unacceptable and contravenes the Disability Act.

Restraint of clients has been addressed at team meetings on a number of occasions and has been further documented in minutes of meetings which are made available to staff on notice boards.

In view of this incident, we regret to advise that we are unable to continue your employment with Plenty Valley Community Health. Your employment will terminate effective Friday 27 June 2014.” 1

[4] By way of an application to the Fair Work Commission dated 17 July 2014, Ms Joseph contests her dismissal was unfair. Her application proceeded to conciliation and then to arbitration before me in the form of a determinative conference. The matter has been the subject of such conferences convened so far on four dates; 10, 11 and 17 March for substantially the whole day, and on 18 March for a part day.

[5] The Applicant, Ms Joseph has both represented herself and been assisted by a co-representative, Babu George, whom I understand to be neither a paid agent or a lawyer.

[6] The Respondent, Plenty Valley Community Health, is represented by its Counsel, Anna Forsyth and Alishia Prpich, solicitor, from Minter Ellison, with me granting permission for Plenty Valley Community Health to be represented by a lawyer on 19 November 2014. 2

[7] The matter is the subject of a confidentiality order which has been made to protect the privacy of a client of Plenty Valley Community Health. 3 The Order provides relevantly that “that all parts of the evidence in this matter and any documents tabled in the proceedings and the transcript of the proceedings are confidential and may not be published or provided to any person who is not a party to these proceedings, or their lawyer or representative”. The Order is maintained, for reason of the client’s privacy, however for the avoidance of doubt, the publication of this decision is exempt from the confidentiality order made.

[8] The progress of the matter so far has been to take the evidence of Ms Joseph, who was the only person to give evidence on her behalf, and for the Respondent to proceed through the examination-in-chief of its first witness, Jacqueline Gravatt, Manager, Disability Services. Cross-examination of Ms Gravatt has been commenced, but is not yet completed, with Mr George advising the Commission on the last sitting day that he expected there to be about a further two hours of questions for her. 4

[9] Plenty Valley Community Health has filed witness statements from a further three witnesses;

• Susan Gray, Home Supervisor, Newton Street;
• Kathleen Hall, Team Leader, Mill Park and Farm Vigano sites
• Cynthia Fois, Human Resources Manager

[10] At the conclusion of the hearing on 18 March, I discussed with the parties my concerns for the future progress of the matter, owing to the slow progress of the matter. My concerns led to the issue of Directions to both parties in relation to two matters;

• That they exchange information and endeavour to agree on Ms Joseph’s post-termination earnings; and

• That each review their need for evidence, whether through written witness statement, examination-in-chief or cross-examination in relation to;

• The remainder of Ms Gravatt’s evidence;



• The whole of Ms Gray, Ms Hall and Ms Fois’ evidence.

[11] The Directions indicated a Mention Hearing would be held on 10 April 2015 for discussion and resolution of these matters, in preparation for the resumption of the determinative conference which was to be on 12 April 2015.

[12] On 9 April 2015, Ms Joseph advised my Chamber and the Respondent of her inability to attend on either of these dates for reasons of personal illness, and consequently both matters were adjourned until 22 May 2015, for the Mention Hearing, and 27 May 2015, for the determinative conference.

[13] On 19 May 2015, Ms Joseph wrote to my Chambers and those of the President, Justice Ross, expressing a number of complaints about the conduct of the determinative conference convened by me so far. After expressing the substance of her concerns, Ms Joseph concludes;

“17. I believe that the Commissioner diverted from the objective of the Fair Works Act, did not do an equal treatment, followed a discriminatory attitude towards me and did not give me procedural fairness. As per Clause 24 of the [Fair Hearings Practice Note], the Commissioner’s impartiality is central to fair hearing.

18. I also strongly believe that this Commissioner, Wilson may not bring an impartial mind to the matter and hence I make this Application under clause 26 of the practice Note and I request that the matter may be referred back to the Relevant Panel Head for allocation to another member so that I may get a fair, just and impartial proceedings, hearing and fair disposal of this dispute. If this application is not allowed I will be put to irreparable loss and injury.” 5

[14] Having received this correspondence from Ms Joseph, the President responded to her by email on Wednesday, 20 May 2015 with the advice that;

“... if you believe that Commissioner Wilson is demonstrating bias in relation to your unfair dismissal matter, then the appropriate course is for you to make an application to the Commissioner in the first instance submitting that he should disqualify himself from hearing the matter. Such a course will provide an opportunity for other interested parties to be heard in relation to your application.

If you are dissatisfied with the Member’s decision then lodging an appeal is the appropriate course particularly if you believe that you have not been afforded procedural fairness or if you believe that the Member made an error in his decision.” 6

[15] Also on 20 May 2015, the parties were advised that the Commission as presently constituted would move to hear and determine this request, with the request to be addressed in the first instance at the Mention hearing listed on 22 May 2015.

The Recusal Application

[16] At the start of proceedings on 22 May 2015, Ms Joseph and her co-representative, Mr George, confirmed that Ms Joseph had made an application for me to disqualify myself from hearing her application for unfair dismissal remedy for reason of apprehended bias, including for a failure to accord procedural fairness or natural justice to Ms Joseph, and that they relied upon Ms Joseph’s submissions made in writing on 19 May 2015.

[17] The Respondent, Plenty Valley Community Health Ltd resists the application for recusal, however have not placed substantive submissions before me on the subject, other than to argue that the application should be dismissed, and that there is no evidence to support either apprehended bias or a failure to afford procedural fairness. 7

[18] I now consider and determine that application.

[19] The case as made in Ms Joseph’s submissions discloses several matters, being a compound of complaints about bias and concerns she held about the failure to accord her procedural fairness or natural justice. The details of her claim require consideration within the framework that the Commission and Courts and tribunals use to consider questions of apprehended bias.

Apprehended bias generally

[20] Within her recusal application, Ms Joseph refers to the Fair Hearings Practice Note and so it is appropriate to first consider the terms of that document. The context of my references to the Practice Note include her concerns of apprehended bias and the failure to accord her procedural fairness and natural justice.

[21] Noting that it is a summary of the current law and that it does not have anything above or beyond the relevant authorities, the Practice Note provides insofar as is relevant;

“Impartiality and apprehended bias

24. The Commission’s impartiality is central to a fair hearing. Bias, whether actual or apprehended, is inconsistent with the Commission’s obligation to provide a fair hearing.

25. The general principle is that a Member should not deal with a matter if in all the circumstances a fair minded observer might have a reasonable apprehension that the Member might not bring an impartial and unprejudiced mind to the case before him or her.

26. If a party believes that a Member may not bring an impartial mind to the matter, they may make an application that the Member disqualify himself or herself from hearing the matter. For example, if a Member conciliates a matter and a party believes that the Member may not bring an impartial mind to the arbitration of the dispute then they may request that the matter be referred back to the relevant Panel Head for allocation to another Member.

27. Any application will be considered in context, with each decision depending on the particular issues or circumstances raised. ). For example, as explained in paragraphs 14 and 15 above, Members may intervene in the conduct of matters to ensure that proceedings are conducted fairly and efficiently. This approach will have an effect on the way in which applications to disqualify a Member are considered.

28. In dealing with apprehended bias applications, the High Court has made clear that Members should not too readily agree to disqualify themselves. As the High Court has observed:

“… Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

29. An apprehended bias application will not automatically be granted if a Member’s past decisions on questions of fact or law could lead to a reasonable expectation that they would decide a matter adversely for one of the parties.” 8 (references omitted)

[22] An application for a presiding member to disqualify themselves from hearing a matter relates to a question of procedural fairness. The Commission’s Fair Hearings Practice Note makes the point;

“The provision of a fair hearing is at the very heart of the Commission’s obligations to the parties who appear before it. A fair hearing involves the opportunity for all parties to put their case and to have that case determined impartially and according to law. Members of the Commission are bound to act ‘judicially’ in the sense that they are obliged to provide procedural fairness and to determine matters impartially.” 9

[23] It is noted that in addition to the Commission’s Fair Hearings Practice Note is the Unfair Dismissal Proceedings Practice Note which provides procedural guidance regarding the scheduling and conduct of proceedings relating to unfair dismissal applications which do not settle at or which do not proceed to conciliation conducted by conciliators. 10 That Practice Note also sets out the procedures for obtaining Orders for the production of documents or Orders for the attendance of witnesses.

[24] The Full Bench has articulated the need to apply the principles of natural justice and to afford procedural fairness in this way;

[21] The impartiality of the Commission is central to a fair hearing. Bias, whether actual or apprehended, connotes the absence of impartiality. Applied to Commission members the governing principle is that a member is disqualified if a fair minded observer might reasonably apprehend that the member might not bring an impartial mind to the resolution of the question that the member is required to decide. The principle gives effect to the requirement that justice should both be done and be seen to be done.

...

[28] It is clear that members of the Commission are bound to act in a judicial manner and the principles of natural justice are applicable to hearings before the Commission. The term ‘natural justice’ in the context of administrative decision making has been equated to an obligation to act fairly or to accord procedural fairness. The requirements of natural justice or procedural fairness are not prescribed in a fixed body of rules. What is required is judicial fairness and what is fair in one case may be quite different from what is required in another.

[29] The Commission’s obligations regarding the manner in which it must perform its functions and exercise its powers are set out in ss.577 and 578 of the Act. Relevantly, the Commission must act in a manner that:

• is fair and just;
• is quick, informal and avoids unnecessary technicalities;
• is open and transparent; and
• takes into account equity, good conscience and the substantial merits of the case.

[30] These obligations may be seen as incidents of a general duty on the Commission to ensure a fair hearing. The concept of a fair hearing is fundamental to the justice system and is at the very heart of the Commission’s obligations to the parties who appear before it. 11 (references omitted)

[25] The Fair Hearings Practice Note makes the point that Members should not too readily agree to disqualify themselves and follows decisions of the Full Bench on the subject; see for example Oram v Derby Gem Pty Ltd 12; UFU v MEFSB13. The cases in turn follow the proposition enunciated by the High Court in Re JRL; Ex parte CJL,14 in which Mason J observed;

“It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey 15 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.”16

[26] The Courts have held that the possibility of the apprehension of bias must be “firmly established” in the case of an application for disqualification for suspected prejudice; for example see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group 17and Laws v Australian Broadcasting Tribunal18, which latter enunciation has been applied by the Full Bench, including in the matters of Oram v Derby Gem Pty Ltd19 and UFU v MEFSB20.

[27] Plainly, the appearance of bias to a reasonable observer is to be avoided. Such application is distinct from an application for disqualification on the ground of actual bias.

[28] The High Court set out the objective test of the “fair-minded lay observer” in Johnson v Johnson 21 as follows;

“It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.” 22

[29] The test is repeated in Ebner v Official Trustee 23 and is based upon the need for public confidence in the administration of justice. The High Court observed in Johnson v Johnson about the test being an objective one that;

“The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’” 24

[30] In the earlier case of Livesey v NSW Bar Association 25, the test was referred to in this way (in the context of an appeal in which the Appellant alleged apprehended bias on the part of judges who had, in an earlier case, made adverse findings about the credit of a person whom the Appellant might bring forward as a witness);

“It was common ground between the parties to the present appeal that the principle to be applied in a case such as the present is that laid down in the majority judgment in Reg. v. Watson; Ex parte Armstrong. That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. That principle has subsequently been applied in this Court (see, e.g., Re Judge Leckie; Ex parte Felman; Reg. v. Shaw; Ex parte Shaw) and in the Supreme Court of New South Wales (see, e.g., Barton v. Walker). Although statements of the principle commonly speak of "suspicion of bias", we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning.” 26

[31] The application of the objective test of the “fair-minded lay observer” is set out in Ebner v Official Trustee as a two step process requiring identification of matters, followed by connection of those matters with the case being decided. The High Court articulated the application of the principle as follows;

“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.” 27

[32] In its consideration of applications of apprehension of bias, the Commission has followed these principles, both as to the objective test contained within, and the two steps of identification of matters and logical connection (see for example UFU v MFESB 28, Priestly v Department of Parliamentary Services29; Re Metro Trains30).

[33] Application of the apprehension of bias principle to the work of the Commission and its predecessors has taken account of its statutory role and purpose; see In R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group 31; Re Finance Sector Union of Australia and Another Ex Parte Illaton Pty Ltd.32

[34] In UFU v MEFSB 33, an appeal decision of the Australian Industrial Relations Commission, the Full Bench acknowledged;

“The starting point for our consideration of this issue is the generally accepted proposition that members of the Commission are bound to act in a judicial manner and the principles of natural justice are applicable to hearings before the Commission. The term “natural justice” in the context of administrative decision making has been essentially equated to an obligation to act fairly or to accord procedural fairness. As Kitto J observed in Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth): “What the law requires in the discharge of a quasi-judicial function is judicial fairness.”

The rule against bias is one of the principles of natural justice.

It follows that the failure of a Commission member to disqualify themselves, in circumstances where statements which they have made give rise to a reasonable apprehension of bias, is a failure to accord procedural fairness.” 34 (references omitted)

[35] In John Holland Pty Ltd T/A John Holland Aviation Services Pty Ltd v Mr Ronaldo Salazar,  35 the Full Bench was called to consider an appeal in the matter of an unfair dismissal application. In the original hearing the Applicant was self-represented. While the Respondent sought to be legally represented, that was refused at first instance. The appeal surrounded the anticipation, which was not fulfilled in the original hearing, of the Respondent being able to cross-examine the applicant on the matters he sought the Commission at first instance to take into account. The Full Bench considered in detail the meaning of procedural fairness in the context of a matter such as Mr Salazar’s and held the following;

[19]This appeal raises various issues concerning the conduct of unfair dismissal proceedings when dismissed employees represent themselves and are not familiar with the usual processes of leading evidence and cross-examination. It requires a consideration of the general nature of the Commission’s duty to accord procedural fairness, the content of the duty in relation to the leading of evidence, the approach to the admission of evidence and the weight to be given to statements from the bar table. These matters must be considered in the context of the role of the Commission when parties represent themselves. The Commission has additional duties when parties represent themselves to ensure justice to all parties is achieved.

[20]It is well established that Commission members are required to act “judicially” and accord all parties procedural fairness. This duty must be applied in the context of the particular circumstances including the nature of representation and the nature of the matter before the Commission. In Coal and Allied Services v Lawler, Buchanan J said:

“There is no doubt that members of FWA are (as were members of its statutory predecessors, the Commonwealth Conciliation and Arbitration Commission and the Australian Industrial Relations Commission (“the AIRC”)) bound to act “judicially” in the sense that they are obliged to respect and apply traditional notions of procedural fairness and impartiality. (See Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd [1989] HCA 41; (1989) 167 CLR 513 at 519, citing R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 552; R v Moore; Ex parte Victoria [1977] HCA 58; (1977) 140 CLR 92 at 101–2. See also Re Polites; Ex parte Hoyts Corporation Pty Limited [1991] HCA 31; (1991) 173 CLR 78; Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd [1992] HCA 30; (1992) 66 ALJR 583). However, it is an important aspect of the work of FWA, at all levels including on appeal (as it was of its statutory predecessors), that it is to proceed without unnecessary technicality and as informally as the circumstances of the case permit. FWA is not a court and its members are not judicial officers as such (although the President has the same status as a judge of this Court and some senior members of FWA retain an equivalent status from earlier statutory arrangements). It is not inappropriate to say that the members of FWA have a statutory mandate to get to the heart of matters as directly and effectively as possible.”

[21]The general principle of procedural fairness should be noted. In Kioa v West Mason J (as he then was) said:

“32. Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, Kitto J. pointed out (at pp 503-504) that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on "the particular statutory framework". What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 552-553; National Companies and Securities Commission v. The News Corporation Ltd. [1984] HCA 29; (1984) 58 ALJR 308, at pp 314, 318; [1984] HCA 29; 52 ALR 417, at pp 427-428, 434).

33. In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations (cf. Salemi (No. 2), at p.451, per Jacobs J.).”

[22]Once an application is made the Commission must hear the case, as a Full Bench of the Commission said in Michelletto v. Korowa:

“The Right to a Hearing
[14] It is implicit in the statutory provisions which we have referred to that once an applicant has elected to have his or her application determined by arbitration he or she acquires a right to have the case heard. There is a corresponding duty in the Commission to hear the applicant's case. The nature of the applicant's right is, in the time-honoured phrase, a right to their day in court. The right to a hearing is not unqualified. Circumstances may render it just that something less than a full hearing is appropriate. For example, the Act specifically provides for summary dismissal of an application if there is clearly no jurisdiction (s.170CEA) or if the applicant fails to prosecute its case (s.170CIB).”

[23]This obligation to hear a case requires the Commission to give the parties the opportunity to be heard on the various aspects of the case: Re Media Entertainment and Arts Alliance; Ex part Arnel. In that decision the High Court cited Re Australian Railways Union; Ex parte Public Transport Corporation:

“But the wide scope given to the Commission in determining the relief which it will give does not absolve it from the obligation to observe the rules of procedural fairness in exercising its arbitration function. In Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd this court pointed out that it was well settled that the Conciliation and Arbitration Commission was bound to act judicially and that the Commission, as its successor, is bound to do likewise. The court went on to point out that one aspect of the duty to act judicially is the duty to hear a party and to allow him or her a reasonable opportunity to present his or her case and, coupled with that duty, is the duty to consider the case put. And in Re Media Entertainment and Arts Alliance; Ex parte Hoyts Corp Pty Ltd the court said that the Commission has a duty in considering an application to afford a party a reasonable opportunity to allow his or her case to be put.”

[24]The role of the Commission member when an applicant appears in person also needs to be taken into account. The duty is to provide for a fair hearing but not to provide a positive advantage to a self represented litigant. As Samuels JA said in Rajski v Scitec Corporation Pty Ltd :

‘‘. . . the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent....At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. ...An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.’’

[25]In Minogue, the Full Court of the Federal Court recognised that the trial judge must strike a balance.

“A trial Judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial.”

[26]It has been held that legitimate intervention includes ascertaining the rights of parties. In Downes & Anor v Maxwell Richard Phys & Co Pty Ltd (in liq) [2014] VSCA 193 at [25], Osborne JA said:

“Nevertheless in Neil v Nott & Anor the High Court recognised that a frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.”

[27]The boundaries of legitimate intervention must be considered in the context of the requirement for the Commission to proceed in a manner which is quick, informal and avoids unnecessary technicalities. (Section 577 of the Act) Consistent with this duty the Commission, as with its predecessors, often accepts statements from the bar table on matters of fact. As Buchanan J observed “the members of FWA have a statutory mandate to get to the heart of matters as directly and effectively as possible”. However, the Commission must also act in a manner that is fair and just. The parties should be made aware of the consequences of making unsworn assertions from the bar table when the statements are likely to be contested.” 36 (endnotes omitted)

[36] In a different context to an unfair dismissal matter, namely an appeal relating to an application under s.418 of the Act for the making of orders that industrial action on a construction site stop, in which the Appellant argued it had been denied natural justice when it was not afforded the opportunity for an adjournment, the Full Bench held that in an analysis of claims of a denial of natural justice or procedural fairness it is necessary to have regard to the statutory context, the particular circumstances of the proceedings and the grounds of the matter under consideration; per CEPU & CFMEU v Abigroup Contractors Pty Ltd. 37 The substance of the Full Bench’s decision, to dismiss the appeal, was overturned on judicial review by the Full Federal Court in the majority decision in CEPU v Abigroup Contractors Pty Ltd.38 However, in relation to the matter of the application of procedural fairness to the work of the Commission, the majority held;

“118. It is well established that the members of the Fair Work Commission are obliged to observe procedural fairness in carrying out their functions under the Fair Work Act: Coal & Allied Services Pty Ltd v Lawler[2011] FCAFC 54; (2011) 192 FCR 78 at [25]. That obligation extends, in the absence of any express provision to the contrary, to the exercise of the Commission’s powers under s 418: Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26; (2008) 166 FCR 108 at [44].

119. Procedural fairness requires that the Fair Work Commission ensure that each party is given a reasonable opportunity to present his or her case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ; Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J. The Full Bench stated in [30] of its reasons that an application under s 418 of the Fair Work Act is, “quite a different situation to civil remedies generally where there is an obligation to make out a case and permit a respondent a reasonable opportunity to respond to the case against them”. That statement as it reads is erroneous, but the Full Bench went on to conclude in [33] that such a reasonable opportunity was in fact given so that its error may be irrelevant.” 39

[37] Further, and with specific reference to the means by which procedural fairness can be established, the majority held;

“137. When a court considers whether a tribunal exercising a statutory power has accorded a party procedural fairness, the court must place itself in the shoes of the tribunal to determine whether the procedure adopted was reasonable and fair: Kioa v West at 627 per Brennan J. What is reasonable and fair depends on the circumstances known to the tribunal at the time of the exercise of the power or the further circumstances which, had it acted reasonably and fairly, it would then have known: Kioa v West at 627 per Brennan J.”  40

[38] It is appropriate therefore, in assessing Ms Joseph’s contentions in relation to procedural fairness, to have regard to the purpose and nature of her unfair dismissal application; its statutory context; and the circumstances known or identified to the Commission about the application, including the various procedural decisions it made.

Consideration

[39] Against this background the question arises “whether a fair-minded lay observer might reasonably apprehend” that I might not bring an impartial and unprejudiced mind to the resolution of the question I am required to decide.

[40] In this regard, I turn to application of the two step process set out in Ebner v Official Trustee 41 of first requiring identification of matters, followed by connection of those matters with the case being decided.

[41] I turn first to identifying the matters that are argued might lead to deciding Ms Joseph’s application for unfair dismissal other than on its legal and factual merits.

[42] The relevant matters are set out in Ms Joseph’s correspondence to the Commission dated 19 May 2015. In the course of the proceedings on 22 May 2015, I inadvertently marked that document as Exhibit A11, without realising that document number had already been allocated. As a result, I now re-mark Ms Joseph’s correspondence to the Commission dated 19 May 2015 as Exhibit A12.

[43] Exhibit A12 contains 18 numbered paragraphs. It also contains a preamble and closing paragraph, which are not relevant for consideration in this matter. Paragraphs 1, 2, 17 and 18 are also not relevant for analysis, each being general or summarising in nature. I turn to consider the remaining paragraphs, 3 – 16 inclusive;

1. Paragraph 3. This complaint pertains to an amendment to Ms Gravatt’s written witness statement granted to the Respondent over Ms Joseph’s objection. The Applicant submitted in this regard;

“As per the section 586 of the Fair Works Act, “FWA may allow a correction or amendment of any application or other document relating to a matter before the FWA on any terms that it considers appropriate”. But the manner the Commissioner allowed the Amendment for the Respondent was unfair. The Commissioner did not seek any objection from me and did not even inform. (Vide PN3963 to PN3979 of the transcript). When my Representative raised strong objection about the manner it was done and it was improper (Vide PN3999 and PN 4028 of the transcript) the Commissioner overruled it as per PN4029 of the transcript which is unfair. The section says that Amendment may be done on any terms but the Commissioner did not even inform me and amendment was carried out which is an unjust act on the part of the Commissioner.” 42

2. Paragraph 4. This complaint expresses a failure by the Commission to apply the provisions of s.591 of the Act (FWC not bound by rules of evidence and procedure) by applying procedures apparently adverse to Ms Joseph. This aspect of the complaint is connected with paragraphs 5 and 6.

3. Paragraph 5. This paragraph contains two heads of complaint;

a. Firstly that Ms Joseph was misinformed at the start of the determinative conference about its duration and purpose;

“At the outset of the proceedings the Commissioner informed the parties (Vide transcript PN 7) that “this is said to be a short conference, just for clarifying a couple of matters”. But the conferences have been prolonging and four days of conferences were held which were effectively utilised for adducing the evidence of the Respondent.” 43

b. The second aspect of the complaint in paragraph 5 amounts to a concern that Ms Joseph has been subjected to an inconsistent approach to decisions taken about the admission of documents;

“The Commissioner was accepting each and every documents of me only after asking relevancy and seeking objection from the Respondent. But for accepting and marking as exhibits of the Respondent’s documents the Commissioner never sought any kind of objection from me and never asked any relevancy. For my documents and evidence, oral or otherwise, the Commissioner was asking for relevancy but for the Respondent, never did. (Vide PN4494).” 44

4. Paragraph 6. This paragraph expresses the concern that rulings on questions asked by the Applicant were dealt with strictly, in comparison with rulings on questions asked by the Respondent;

“In the case of Chief and Re-examination of me the Commissioner Wilson was very strict and adamant about the procedure and Rules of the Evidence Act and always says that this is a “leading question” and so he was not going to accept. This is evident from the transcript of the proceedings (PN 313, 617, 783,861, 314, 4070, 4074, 4093, 4095, 4101, 4102, 4236, 4242, 4243). But in the case of the Respondent Solicitor, even though she asked “leading questions” so many times, the Commissioner Wilson never said any objection and he was at all times not sticking on or adamant on the rules and procedures of the Evidence Act, which is evident from the transcript of proceedings (Vide from PN 3953 to PN 4292). In addition to this for the admission of documents of me the Commissioner was strict about and always asking the relevancy and even asking where, how, and when I got the documents and was reluctant to admit.” 45

5. Paragraph 7. The matter expressed in this paragraph is a general one, to the effect that the provisions of the Practice Note (clauses 10 and 24) were not applied, and neither were the objects of the Act.

6. Paragraph 8. This too, is a general concern of unfair treatment.

7. Paragraph 9. This paragraph expresses concern firstly that Ms Joseph has sought and failed to obtain orders of the Commission for the production of documents so as to assist her case, whereas the Respondent has freely tendered documents in the course of its cross-examination of her. She submits relevantly;

“But for me most of the documents upon which I relied was in the Respondent’s possession and custody. For the production of these documents, I submitted petition before the Commission, but the Commission did not issue any order at all. There was not even a response to this petition by the Commissioner. But the Commissioner was very liberally accepting and admitting and marking, whatever documents of the Respondent. I raised objection but Commissioner that this flatly refused.” 46

8. Paragraph 10. This paragraph is also a general concern of unfair treatment for the reason that the Commission accepted the Respondent’s submissions, but not Ms Joseph’s.

9. Paragraph 11. This paragraph complains that a comment made to the Applicant and her co-representative that it would be inappropriate to refer to me as “your Honour” showed bias because a similar comment had not been made to the Respondent’s representative.

10. Paragraph 12. This paragraph refers to bias shown to the Applicant when she sought a break in cross-examination, which was granted, but with a caution expressed about not speaking with anyone about her evidence. In this regard, Ms Joseph submits;

“This is when I requested the Commissioner for 5 minutes brake (sic) after 2 hours and 30 minutes of prolonged cross examination by the Respondent’s Solicitor. The Commissioner asked me “why you need the brake? And granted 5 minutes brake after issuing “Caution”. Because of this Caution Order I could not even go out of the Court Room and even could not go to the toilet. But it is to be painfully submitted that in the case of the Respondent’s first witness, at the time of cross examination of my Representative, the Commissioner, even without any request on the part of the witness, himself asked the Respondent witness “Do you want a break”? And liberally sent her for break without issuing any “Caution” or instruction whatsoever. This is evident from the transcript (vide PN4973) this is total discrimination on the part of Commissioner, Wilson.” 47

11. Paragraph 13. This paragraph is also a general concern of unfair treatment, but connected with questions directed by the Commission to Ms Joseph or Mr George about the relevance or permissibility of their questioning. It is said that this treatment was selective and not equally applied to the Respondent.

12. Paragraph 14. This paragraph is also a general concern of unfair treatment, also going to questions from the Commission about the admissibility of questions in cross-examination.

13. Paragraph 15. This paragraph is also a general concern of unfair treatment, for reason of the non-application of cl.12 of the Practice Note, which goes to proceedings being fair, efficient and being seen to be impartial.

14. Paragraph 16. This paragraph expresses concerns that the transcript prepared for the matter is incomplete in respect of the Applicant’s material, but not so for that of the Respondent.

[44] The second matter for consideration is whether there is a logical connection between the matter and the feared deviation from the course of deciding the case on its merits. This question requires resolution on an objective basis. That is, whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question I am required to decide.

[45] The “feared deviation” 48 in this case is that Ms Joseph’s application for unfair dismissal remedy will not be determined in accordance with the requirements of the Act and the evidence presented because of the matters set out in her application that I disqualify myself from hearing the matter.

[46] The characteristics of the fair-minded lay observer are described in the following manner by the majority in Johnson v Johnson;

“The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial''.

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.” 49 (references omitted)

[47] In the same matter, Justice Kirby described the traits of the observer in this way;

“Obviously, all that is involved in these formulae is a reminder to the adjudicator that, in deciding whether there is an apprehension of bias, it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public. It is their confidence that must be won and maintained. The public includes groups of people who are sensitive to the possibility of judicial bias. It must be remembered that, in contemporary Australia, the fictitious bystander is not necessarily a man nor necessarily of European ethnicity or other majority traits.

The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers.” 50 (references omitted)

[48] I turn to consider each of the 14 particularised matters set out above;

Paragraph 3. The amendment to Ms Gravatt’s written witness statement granted to the Respondent over Ms Joseph’s objection

[49] The amendment granted to Ms Gravatt’s witness statement 51 was in two respects, with notice being given by Counsel for the Respondent in the course of the statement being adopted and before any substantive questions were asked of her, either in examination-in-chief or cross-examination. The amendments did not appear, on their face, to go to any issue of the credit to be accorded to Ms Gravatt’s statement. The foreshadowed amendments did not change the overall direction of the evidence, or raise substantially new matters of which Ms Joseph should have had prior notice.

[50] The amendments were to paragraph 30, with regard to certain documents supporting management of the Client’s behaviour, and the correct expression of the documents that were attached to Ms Gravatt’s written statement. In particular the change removes two documents within an attachment, JCG-4, for the reason they were prepared after Ms Joseph left employment, and leaves in place a third which was prepared before her dismissal.  The documents each relate to the client to whom Ms Joseph was providing care. 52 A further amendment, of a grammatical correction only, was made to paragraph 67, by inserting the word “have” into a phrase that should be expressed as “I have undertaken workplace bullying training …”.53 The objection that was raised against these changes was non-specific, other than an objection to the Applicant not having had notice of the mooted change.54

[51] The fact of the amendments, and if they were thought to raise new matters or questions of the credit to be given to Ms Gravatt’s evidence, could properly be the subject either of a request for a short adjournment for the purposes of considering the meaning of the change, or of questions in cross-examination aimed at questioning Ms Gravatt’s motivation for the change or whether the change raised any question of impropriety on her part. Such possibilities for cross-examination were identified by the Commission to Ms Joseph and Mr George at the time the ruling against the objection was made. 55

[52] The amendments do not appear to have any perceptible bearing on any of the criteria in s.387, and such has not been argued by Ms Joseph or Mr George. To the extent that the changes relate to the credit of Ms Gravatt, such can be dealt with firstly through cross-examination and secondly through submissions as to the weight to be accorded to her evidence. The amendment to paragraph 30 also appears to fairly correct an error the Commission might have made in its decision if it relied upon the paragraph without alteration and, to that extent, satisfies the professional duty held by the Respondent’s Counsel and solicitor to the Commission.

[53] The Commission’s ruling to allow the amendment was made fairly and objectively taking into account the extent of the change proposed and its bearing on the matters requiring determination by the Commission in this matter.

[54] Ruling against the Applicant’s objection on this matter presents no reasonable likelihood of a feared deviation from the course of deciding the case on its merits.

Paragraphs 4, 5, 6, 13 and 14 - procedures adopted by the Commission in the taking of evidence in the matter

[55] Five of the paragraphs in Ms Joseph’s complaint deal with the procedures adopted by the Commission in the taking of evidence in the matter;

1. Paragraph 4 expresses a failure by the Commission to apply the provisions of s.591 of the Act (FWC not bound by rules of evidence and procedure);

2. Paragraph 5 refers to the question of whether Ms Joseph was misinformed at the start of the determinative conference about its duration and purpose and that inconsistent procedure was applied to Ms Joseph in relation to questions of relevance of documents and admission of documents;

3. Paragraph 6 is concerned with rulings on questions asked by the Applicant perhaps being dealt with strictly, in comparison with rulings on questions asked by the Respondent;

4. Paragraph 13 also deals with a decision by the Commission regarding the relevance or permissibility of questions on behalf of the Applicant, with it being said that the Commission’s treatment was selective and not equally applied to the Respondent;

5. Paragraph 14 refers to a concern of unfair treatment from the Commission about the admissibility of questions asked in cross-examination of Ms Gravatt by Ms Joseph or Mr George.

[56] It is convenient to deal with these aspects of Ms Joseph’s complaint together.

[57] Section 591 of the Act is in the following terms;

“591 FWC not bound by rules of evidence and procedure

The FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter).”

[58] Notwithstanding the provisions of s.591, the Commission is bound to act judicially: per Coal and Allied Services v Lawler. 56

[59] In relation to the proposition raised in the first part of paragraph 5, that Ms Joseph was misinformed at the start of the determinative conference, she says;

“At the outset of the proceedings the Commissioner informed the parties (Vide transcript PN 7) that “this is said to be a short conference, just for clarifying a couple of matters”. But the conferences have been prolonging and four days of conferences were held which were effectively utilised for adducing the evidence of the Respondent.”

[60] Respectfully, the reference Ms Joseph makes in this regard is incorrect, and significantly so. For the reason that she departs significantly from that which was said and recorded, it is necessary to refer to both the circumstances of what was said prior to the start of the determinative conference and what was said at its start. A short private conference was held with each party prior to convening on the record, which was for the purposes of clarifying the parties’ attitude to conciliation and the matters in dispute. After appearances were taken, the Commission said the following at PN 7;

“PN7 THE COMMISSIONER: Thank you. Before commencing the proceedings this morning I had the benefit of a short conference with the parties and arising out of that conference there was just a couple of matters which I wish to clarify, particularly with Ms Forsyth. Now, my understanding is that you concede that Ms Joseph is a person protected, or was a person protected, from unfair dismissal at the time that she was dismissed.

PN8 MS FORSYTH: Yes, we do, Commissioner.”

[61] There then ensued a discussion with both parties about the reasons for termination; whether any of the initial matters contained within s.396 were enlivened; and the documents and witnesses upon which Ms Joseph relied.

[62] The foregoing extract of the transcript, together with its context, shows that the reference to a short conference is to something that was in the recent past, and that the couple of matters to be clarified were the issues then discussed. The transcript does not allow the interpretation advanced by Ms Joseph that the whole proceeding would be short and in order to clarify a couple of matters only. A fair minded observer could not come to the conclusion put forward by Ms Joseph.

[63] The second part of paragraph 5 raises a concern about an inconsistent approach being applied to the admission of documents.

[64] Thirteen documents have been admitted to the evidence on behalf of Ms Joseph, as follows;

• A1 - First witness statement of Ms Joseph, provided to FWC on 17 October 2014 (tendered 10 March 2015);

• A2 - Second witness statement of Ms Joseph, provided to FWC on 17 October 2014 (tendered 10 March 2015);

• A3 - Bundle of payslips pertaining to Ms Joseph - provided to FWC on 5 March 2015 (tendered 10 March 2015);

• A4 - “Positive Behaviour Support Strategies” document pertaining to Client J, dated 29 April 2013 (tendered 10 March 2015);

• A5 - Contracts of employment pertaining to Ms Joseph;

• Casual contract, dated 6 January 2011



• Casual contract, dated 5 June 2012



• Part-time contract, dated 18 February 2014 (tendered 10 March 2015);

• A6 - Job Descriptions pertaining to Ms Joseph;

• Residential Support Worker, review date January 2012



• Instructor Disability Day Services, effective date April 2012



• Instructor Disability Day Services, effective date January 2014 (tendered 10 March 2015);

• A7 - Payslip, dated 5 August 2014 (tendered 10 March 2015);

• A8 - Letter of dismissal, dated 27 June 2014 (tendered 10 March 2015);

• A9 - Email chain of 3 pages, commencing with that from Ms Gravatt, dated 20 June 2014 at 12.04pm (tendered 10 March 2015);

• A10 - Performance Management Plan, pertaining to Ms Joseph, dated 25 June 2014 (tendered 10 March 2015);

• A11 - Parts of a Department of Human Services Publication, “Senior Practitioner Physical Restraint Direction Paper May 2011”; with further unidentified page (tendered 17 March 2015);

• A12 - Correspondence from Ms Joseph to Commissioner Wilson and Justice Ross, dated 19 May 2015, attaching letter of complaint and 3 attachments (tendered 22 May 2015);

• MFI 1 - Hand-drawn plan of premises, prepared by Ms Joseph (tendered 10 March 2015)

[65] A bundle of documents was filed in the Commission prior to the commencement of the determinative conference. All but one of the documents have been admitted as exhibits in these proceedings (as Exhibits A1 - A3 inclusive and A5 - A10 inclusive). Exhibit A4 was presented in the course of examination-in-chief, having been emailed to the Commission the day before the first determinative conference 57 and Exhibit A11 came to be tendered as a document upon which Ms Joseph relied in the course of answering questions during cross-examination.58

[66] The document that was not admitted from Ms Joseph’s bundle of documents, referred to as document 1 in Ms Joseph’s List of Documents, referring to details of a work placement with Plenty Valley Community Health prior to employment in order to achieve a Certificate IV competency, was not considered by me to have sufficient relevance to the matters requiring determination in these proceedings, and I ruled against the admission of the document against Ms Joseph and Ms George’s objection. 59 In any event, its admission was not considered by me to be necessary for reason of a concession made by the Respondent that Ms Joseph had the relevant qualifications at the time she was employed by the Respondent.60

[67] The proposition is advanced by Ms Joseph that, in respect of her material, she was asked to explain the relevance of the document before admission, but that was not done in relation to the Respondent’s documents. I also take Ms Joseph’s objection to discussion about the relevance of her documents and rulings made about their admissibility to be a reference to the process of discussion that ensued in relation to her documents prior to the giving of her evidence. 61

[68] To date, the Respondent has sought admission to the evidence of Ms Gravatt’s witness statement, as amended, which is Exhibit R13. Twelve other documents were put to Ms Joseph by Counsel for Plenty Valley Community Health in the course of cross-examination, as follows;

• R1 - Documents relating to Certificate IV in Disability;

• DEEWR descriptor of module “provide behaviour support in the context of individualized plans”



• NMIT Information booklet, Certificate IV in Disability (tendered 10 March 2015);

• R2 - Bundle of training attendance sheets and training certificates, pertaining to Ms Joseph (tendered 10 March 2015);

• R3 - Plenty Valley Community Health Occupational Health and Safety Policy and Procedure (tendered 11 March 2015);

• R4 - Plenty Valley Community Health Corporate Plan 2009 - 2013 (tendered 11 March 2015);

• R5 - Plenty Valley Community Health Code of Conduct (tendered 11 March 2015);

• R6 - Plenty Valley Community Health Disciplinary Process Policy and Procedure (tendered 11 March 2015);

• R7 - Plenty Valley Community Health Disability Services Victoria (Part 1) Collective Agreement 2008; [at tab 6 of Respondent’s folder of Authorities] (tendered 11 March 2015);

• R8 - Employee Induction Checklist (tendered 11 March 2015);

• R9 - (a) Fluid intake directions from Dr Venkataraman (5 May 2014) and (b) Jean’s drink strategies m/tea and lunch (undated) (tendered 11 March 2015);

• R10 - Rosters - term 1 and 2 2014 (tendered 11 March 2015);

• R11 - Plenty Valley Disability Services Evacuation Plan (tendered 17 March 2015);

• R12 - VHIMS Policy (tendered 17 March 2015).

[69] A further document, MFI 2, has also been admitted to the evidence. That document is correspondence to Ms Joseph from the Chambers of Justice Ross, dated 20 May 2015 (tendered 22 May 2015)

[70] Some of the documents were not the subject of extensive questioning in cross-examination, appearing as a matter of record (such as the Respondent’s collective agreement). Each however has apparent relevance to the matters requiring determination, with the question of the extent of relevance ultimately being a matter for submissions from the parties. Exhibits R1, R3, R4, R7 and R11 perhaps fall into this category (noting that the utility of R11 is that it provides a map of the facility in question).

[71] Exhibits R2, R5, R6, R8, R9, R10 and R11 are likely somewhat more significant given the nature of the evidence given by Ms Joseph both in examination-in-chief and cross-examination. The documents in those exhibits each go to important aspects of the Respondent’s defence that Ms Joseph was not dismissed unfairly, and that the scheme of the Respondent’s policies and training support its decision making.

[72] I am satisfied that had Counsel not taken Ms Joseph to questions on those documents, she would have been open to the criticism that she had not sufficiently put the Respondent’s case to the Applicant. In this regard, the Full Bench has emphasised the need for one party’s case to be put to the other if the first party seeks to rely upon that case in the Commission’s determination of the matter at hand. In Ghali v Sutherland Shire Montessori Society (Inc), 62 which was an appeal relating to an unfair dismissal matter, the Full Bench made the following findings;

“[25] In the proceedings before the Commissioner four members of the Board of Directors gave evidence to the effect that the Board had instructed its solicitors in relation to the reasons for summarily dismissing the applicants and the letters of termination sent to the applicants’ solicitors. During cross examination of these witnesses by the applicants’ solicitor, it was never put to them that the actual reasons for the dismissals were not the reasons set out in the termination letters and in fact were the reasons now alleged by the applicants.

[26] In this regard, it is relevant to refer to the principle known as the “rule” in Browne v Dunn. The rule is conveniently described in the recent decision of the Federal Court in Ashby v Slipper as follows:

“[74] The principle known as the “rule” in Browne v Dunn (1893) 6 R 67 has two aspects. First, it is a rule of practice and procedure designed to achieve fairness. The rule requires that a party or cross-examiner who intends to invite the court to disbelieve an opposing witness put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved. The rule is designed to “achieve fairness to witnesses and a fair trial between the parties”.

[75] The rationale of the rule was explained by Lord Herschell at 70-71 as follows:

...it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.

[76] Similarly, Lord Halsbury at 76-77 stated:

To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.

[77] The second aspect, critical to this appeal, relates to the weight or cogency of the evidence: that is, as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics Pty Limited v Demir[1975] HCA 27; (1975) 132 CLR 362 at 370-371 (per Gibbs J, Stephen J agreeing, Murphy J generally agreeing). The evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection.

[78] As Samuels JA observed in Ellis v Wallsend District Hospital(1989) 17 NSWLR 553 at 587-588, it may be “wrong, unreasonable or perverse to reject unchallenged evidence” and if an appellate court concludes that it were so, in the particular circumstances of a given case, it may overturn the decision of the primary judge on the basis of an error of fact, rather than an error of law. However, as his Honour observed at 588, there is no rule of law in this country that a Court must accept unchallenged evidence.”

[27] The ‘rule’ in Browne v Dunn is a fundamental rule of fairness. The evidence given in the proceedings at first instance by members of the Board included evidence to the effect that the correspondence from the employer’s solicitors outlined the Board’s concerns and that the termination letters were sent on instructions from the Board. It was never put to the members of the Board that the “real” reasons for dismissing the applicants were not the reasons set out in the termination letters. It was not suggested that the reasons given in the termination letters were a sham and the Commissioner was not asked to make any such finding.

[28] In these circumstances the Commissioner was entitled to proceed on the basis of the evidence and submissions before him and to make relevant findings having regard to that evidence. It has not been shown that there was any error in the approach of the Commissioner in considering whether the reasons stated by the employer in the letters of termination were valid reasons for dismissal (s.387(a)) and, having regard to those reasons, whether the applicants had been notified of the reasons and given an opportunity to respond to them (s.387(b) and (c)). The Commissioner made findings to this effect and we consider that those findings were properly made having regard to the evidence before him.” 63 (endnotes omitted)

[73] Considerable latitude has been given by the Commission to both the Applicant and the Respondent in the material each has sought to bring forward. There is little doubt that some of the material that each has sought to rely upon has uncertain or marginal relevance to the ultimate disposition of the matter. Much of the documentary evidence ought to have been the subject of agreed facts upon which the Commission could rely, and the same can be said for the oral evidence. However, the nature of the proceeding, in which the Applicant is not professionally represented, has presented challenges, not only to the Respondent in knowing in advance the entirety of the Applicant’s case, but to the Commission.

[74] Questions were asked of the Applicant in examination-in-chief that had little apparent connection to the statutory criteria in s.387, or which were on matters that had already been dispensed with through agreement with the Respondent (such as whether Ms Joseph is a person protected from unfair dismissal). Questions of a similar nature have been put in the cross-examination of Ms Gravatt so far. The nature of the questioning has meant that on many occasions it has not been clear why a topic is relevant, but that it may have relevance; and on many other occasions it is has been clear from the start that relevance is questionable.

[75] The fact that a party is asked by the Commission to connect their question with matters of relevance is not an indication of bias; it is merely an endeavour to elicit an understanding of the relevance of the question. Equally, the occasions that a question is ruled as not relevant is not a demonstration of bias in the absence of an argument that questions with demonstrated relevance were repeatedly ruled as inadmissible. The Applicant has taken me to no such examples of questions that were disallowed when they should have been permitted.

[76] The assertion has also been made that Mr George was prevented from asking leading questions of Ms Joseph in her examination-in-chief, yet Ms Forsyth has not been similarly challenged.  64

[77] Neither Ms Joseph or Mr George have taken me to the questions asked by Ms Forsyth that they contend should not have been permitted, or the prejudice to the Applicant’s case that they say has flowed from a leading question on the part of Respondent. I take into account that Ms Joseph or Mr George may not be aware that the rule in relation to leading questions, such as may be said to apply in the Fair Work Commission, has application to examination-in-chief and re-examination, but not to cross-examination. 65

[78] A search of the transcript in relation to the matter of leading questions indicates perhaps 7 questions or thereabouts asked by Mr George of Ms Joseph that were disallowed for being leading; some were the product of a direction from me, and others on the basis of an objection from Ms Forsyth. Further, I have reviewed the questions asked by Ms Forsyth of Ms Gravatt in her examination-in-chief and am satisfied that the questions she asked are appropriately framed. While Ms Gravatt was led by Ms Forsyth through some elemental matters of her evidence about which evidential contest would be unlikely, I am satisfied that Ms Forsyth’s questions going to matters in contest between the parties were appropriately open. Had they not been, that would have been pointed out by me to Ms Forsyth.

[79] The contentions made by Ms Joseph regarding these matters overlook that some of the objections to leading questions were raised by the Respondent, and that my duty is to respond to the objection and rule on each as it was made. It also overlooks the obligation that members of the Commission are “bound to act ‘judicially’ in the sense that they are obliged to respect and apply traditional notions of procedural fairness and impartiality”. 66

[80] This obligation, which has application not only to the subject of admission of leading questions, but to many of the other matters raised by Ms Joseph, takes into account, but is not subsumed by, the requirements in s.591 that the Commission is not bound by the rules of evidence and procedure in relation to a matter before it; in s.590 that the Commission may inform itself in relation to any matter before it in such manner as it considers appropriate; or in s.577 to the effect that the performance of the Commission’s functions is in a manner that is fair and just or quick and informal; and in s.578 that the Commission must take into account the objects of the Act and part of the Act under which a matter arises, and equity, good conscience and the merits of the matter.

[81] The contention is made by the Applicant that I have adopted a procedure that is too strict, requiring unnecessary and unfair adherence to the rules of evidence, in conflict with the requirements of s.591, when the Commission is not bound by the rules of evidence and procedure. I respectfully disagree.

[82] Ms Joseph and Mr George have referred to no examples of procedural decisions by the Commission that are the subject of specific disagreement, and they have not pointed to any that could be said to have adversely impacted on Ms Joseph’s case, perhaps for reasons of matters of credit that will ultimately have to be determined by the Commission.

[83] The procedures adopted by the Commission have allowed considerable latitude both in the range of topics covered by the evidence and the actual questions asked. Such latitude has been allowed to both parties and will continue to be allowed provided there is some relevance between the indicated topic and the matters requiring determination by the Commission and that the topic is not on a subject on which evidence is not required, such as because it is the subject of an agreed or conceded fact.

[84] The Commission’s obligations include making a decision on the basis of the evidence before it. Given the somewhat expansive suite of evidence already led, and that there is further evidence to be led, it appears a very small risk to the Applicant that the matters on which she seeks to rely and which are connected with the legislative criteria will not be before the Commission. Ruling against the Applicant’s objection on this matter presents no reasonable likelihood of a feared deviation from the course of deciding the case on its merits.

Paragraphs 7, 8, 10 and 15 - express non-application of the Fair Hearings Practice Note, or general unfairness

[85] Paragraphs 7, 8, 10 and 15 express general concerns relating to what is said to be the non-application by me of the Fair Hearings Practice Note, or of general unfairness or preference for the Respondent’s submissions. The matters have not been greatly particularized, which causes some difficulty in dispensing with them.

[86] It is, of course, well established that a hearing must been seen to be fair.  67 For that reason, the Commission must decide procedural matters in accordance with the merits of each question that arises and must ensure that the balance of interests of the Applicant and the Respondent is maintained. The fair minded observer would take into account the context of the overall hearing; the matters requiring determination by the Commission, as well as those that do not require determination; together with the differences in factual evidence to be given in a matter in which the alleged misconduct of the Applicant is put forward as the reason for her dismissal and the inevitable questions of witness credit that must consequentially be determined.

[87] In applying the objective test of whether the behaviour of the decision maker being observed is reasonable, the fair minded observer will take account of factors such as these – the exigencies of modern litigation and active case management: per Johnson v Johnson. 68 Such exigencies, and particularly those relating to matters involving unrepresented parties, were referred to by the Full Bench in John Holland Pty Ltd v Salazar, referred to above. In relation to the conduct of a determinative conference, the distinction between evidence and submissions and the need for the testing of evidentiary matters, the Full Bench held the following, emphasising that there should be an expressed preference for sworn evidence and an opportunity to test that evidence through cross examination;

“[29]Further, unrepresented parties are often unfamiliar with the distinction between evidence and submissions. Handley JA considered this issue in Randwick City Council v Fuller: 

“There was no challenge by Mrs Fuller, who appeared before his Honour in person, to the validity or enforceability of the Council's resolution or the notice given pursuant to that resolution. The appeal by the Council to this Court challenges the manner in which his Honour exercised his discretion in refusing to grant the Council any relief in its application. Mrs Fuller did not give sworn evidence before the learned trial judge, and it would seem that her affidavit was not formally before the judge either. His Honour adopted the irregular course of allowing Mrs Fuller to say what she wished to say in opposition to the Council's proceedings. No objection was taken to this course by counsel appearing for the Council. It seems to me that the course, although irregular and indeed regrettable, had the result that Mrs Fuller gave unsworn evidence in the proceedings with the acquiescence of the Council and that the judge was entitled to act on that unsworn evidence.

In my respectful opinion, this irregular procedure ought not to be followed when litigants appear in person. The appropriate course is for the judicial officer to explain to the litigant that he or she is entitled to read and rely upon any affidavit that has already been filed on their behalf, and where appropriate they may give sworn evidence in the witness box of any additional facts they wish to place before the Court in support of their case, the evidence being either sworn to or affirmed as the litigant prefers. The litigant should also be made to understand that if that course is followed, he or she will be exposed to cross-examination to test whatever they have said by way of evidence, and it would not be inappropriate for the judicial officer to assist the litigant in person on matters of form when he or she is giving evidence. The litigant in person should also understand that he or she is entitled to make submissions to the Court about the evidence without having to do so from the witness box. This is a difficult distinction for most litigants in person to understand or observe. However this course is preferable to litigants in person being allowed to give unsworn evidence from the bar table without being subject to cross-examination where it is not clear what is submission and what is evidence.”

[30]These observations were made in the context of the practices and procedures of courts and the rules of evidence. However, when an unrepresented person before the Commission wishes to put forward material which is a combination of evidence and submissions it will often be to their advantage to swear to the truth of what they say and to provide the other party with opportunity to identify and challenge any evidentiary matters which are contested. This is consistent with the obligation on the Commission to proceed in a manner which is fair, just, quick, informal and avoids unnecessary technicalities. The form of proceedings may vary, particularly when the Commission utilises a determinative conference rather than a hearing, but where disputed facts are to be relied upon there should be an expressed preference for sworn evidence and an opportunity to test that evidence through cross examination.” 69 (endnotes omitted)

[88] Within that context, and having “sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances” 70 the fair minded observer would not reasonably form the view that the procedures adopted by the Commission in this matter thus far may cause a deviation from impartial decision making on the merits of the case presented by both parties.

Paragraph 9 - orders sought for the production of documents

[89] Ms Joseph expresses two concerns about seeking orders from the Commission for the production of documents she considers relevant to her case and which the Respondent ought be compelled to be produced. The first concern is that she has sought and failed to obtain orders of the Commission for the production of documents so as to assist her case, whereas the Respondent has freely tendered documents in the course of its cross-examination of her. The second concern, so expressed, is that the Commission has not responded to her request. She submits relevantly;

“But for me most of the documents upon which I relied was in the Respondent’s possession and custody. For the production of these documents, I submitted petition before the Commission, but the Commission did not issue any order at all. There was not even a response to this petition by the Commissioner. But the Commissioner was very liberally accepting and admitting and marking, whatever documents of the Respondent. I raised objection but Commissioner that this flatly refused.” 71

[90] In relation to the first part of the complaint – a failure to grant an order in her favour - it is a matter of record that the Applicant has, on several occasions sought orders from the Commission either for the attendance of witnesses or for documents to be provided by the Respondent, and that each has been refused.

[91] In relation to the second part of the complaint – a failure by the Commission to respond to her application – Ms Joseph and Mr George were asked to identify the applications to which Ms Joseph is referring when she says no response was provided by the Commission. Initially Mr George and Ms Joseph referred to an application in March 2015 and then to one in October 2014. 72

[92] The Commission’s file records the following applications for orders and subsequent decisions;

1. An application made by the Applicant on 23 October 2014 for an order for the attendance of witnesses and the production of documents was refused by Deputy President Gooley on 30 October 2014. That application sought the following;

Witnesses

• Cynthia Fois



• Eileen Coleman



• Jackie Gravatt



• Payroll Officer PVCH (unnamed)



• Iaen Marriner



• Susan Gray

Documents

“The document which are requested to be called for are closely related to the issue for consideration by this commission. The allegation that I restrained client J from drinking the waste substance can be defended on the basis of the documents requested to call for.

2. An application was made by Ms Joseph on 14 November 2014 requesting that certain witnesses be summoned for attendance and that certain documents be produced by the Respondent as follows;

Witnesses

• Cynthia Fois



• Kathleen Hall



• Susan Gray



• Jackie Gravatt



• Iaen Marriner

Documents

“the drinking strategy of Ms J and the time table for the academic year 2012, 2013 and 2014 and staff Register For the same in Mill Park and Newton street. And it is from my submissions and the respondent's submissions. It is essential to prove how often I work with the Particular client and how often I worked in Plenty Valley Community Health”

The 14 November application was responded to by me on 17 November 2014 in the course of a Mention Hearing.

My file note on the subject records that Ms Joseph was directed to file witness statements for Ms Coleman and Mr Marriner by 16 January 2015 since it was indicated they may be willing to give evidence. In respect of the unnamed payroll officer, the request for an order was refused.

My file note further records that, in relation to the documents sought by Ms Joseph, while she was at liberty to press the application, she would need to demonstrate that the documents sought were relevant to the matter and that in addition it may be that the Respondent objected to the production of documents.

3. A further application for the production of documents was made on 5 March 2015 and refused by me on 6 March for the reason I was not persuaded of the relevance of the documents sought to the matters requiring determination by the Commission. In refusing the application, the parties were advised that the Respondent was to be on notice that the subject matters referred to in the Applicant’s correspondence may be the subject of cross-examination, where the subject matters are relevant to the matters to be determined by the Commissioner, and if that is the case, it may be that the documents are required for production. The documents sought by Ms Joseph were set out in her correspondence to the Commission on 5 March 2015;

“Please refer to the application dated on 14/11/2014 in respect of the production of Staff register 2012, 2013 and 2014 from Newton St and Millpark sites, Time tables for the programme on 2012,2013,2014, Client Communication Dairy on 2012, 2013 and 2014 academic year and drinking strategies for client J. In addition to that I request the Commission to acquire the following documents for the fair and just disposal of my case.

1 In the incident report dated 7/7/2014 the manager makes refrences to having investigated and consultation and indeed an investigation had occured . This is separate from the incident reporting procedure.

2 All the documents pertaining to this matter relation to section :13 , Re: Disciplinary work Performance as per the PVCH EBA

3 A copy of the report sent to amd received from the office of the Senior Practitioner as per the reporting procedure In the matter of the staff "Physically Restaint " a client this is a legal obligation on the part of the PVCH

4 Was there a report or Investigation by Vitoria Police? If so can I have the report.

5 Training matrix for PVCH and training records for Mini undertaken whilst in employment with PVCH

6 The Manager also stated one her emails that she had to "yell at other staff not to touch the client" Can I have the incident reports and relevant document pertaining to these incidents. Yes I can accept them after you have de-identified the staffs names.

7 Can I also have the discipline process and PVCH policy

8 Incident reporting procedures

9 Process for replacement of shift/staff

10 all reports that includes performance management issues c/o Mini Joseph”

[93] As will be evident from the above, there is a significant overlap between the witnesses Ms Joseph sought and those who will be called to give evidence. The exceptions are those for whom Ms Joseph was directed to obtain and file witness statements, but which she subsequently did not do, and the unnamed payroll officer. The documents sought by Ms Joseph to be ordered by the Commission are also the subject of a significant overlap, and were seen to be so at the time in March and November when Ms Joseph’s requests were refused (noting that the Respondent’s material was filed on 7 November 2014). While that is not to say that there is a full overlap between the documents sought by Ms Joseph and those filed by the Respondent, it is to say that the extent of the similarity is such as to cause the Commission in this case to wish to have greater understanding of the gaps that may exist in the evidence and whether the documents sought by the Applicant may have any or sufficient relevance to the matters requiring determination to be the subject of an order for provision to the Commission, with the subsequent expectation they would be the subject of oral evidence.

[94] The fair minded observer of the exchanges relating to these matters, and being aware of the overall context of the matter, the reason given for dismissal, and the nature of the matters requiring determination, is unlikely to take the view that the Commission as presently constituted had misapplied the principles for allowing the grant of orders. Likewise, and in the absence of particulars as to which request had not been responded to, the fair minded observer could not conclude that the Commission had not responded to Ms Joseph’s requests for documents.

Paragraph 11 - request to the Applicant not to refer to the Commissioner as “Your Honour”

[95] This paragraph complains that a comment made to the Applicant and her co-representative that it would be inappropriate to refer to me as “your Honour” showed bias because a similar comment had not been made to the Respondent’s representative. The fair minded observer would be untroubled by such a request, and would bear in mind the guidance on the subject that is set out in the Fair Hearings Practice Note. 73 The observer would note that the question was not the subject of a complaint to the Commissioner by either Ms Joseph or Mr George at the time it was raised, when each were demonstrably comfortable in expressing their concern on other matters.

Paragraph 12 - regarding a caution given to the Applicant when she sought a break in cross-examination

[96] This paragraph refers to bias shown to the Applicant when during the proceedings on 17 March she sought a break in cross-examination, which was granted, but with a caution expressed about not speaking with anyone about her evidence. In this regard, Ms Joseph submits;

“This is when I requested the Commissioner for 5 minutes brake (sic) after 2 hours and 30 minutes of prolonged cross examination by the Respondent’s Solicitor. The Commissioner asked me “why you need the brake? And granted 5 minutes brake after issuing “Caution”. Because of this Caution Order I could not even go out of the Court Room and even could not go to the toilet. But it is to be painfully submitted that in the case of the Respondent’s first witness, at the time of cross examination of my Representative, the Commissioner, even without any request on the part of the witness, himself asked the Respondent witness “Do you want a break”? And liberally sent her for break without issuing any “Caution” or instruction whatsoever. This is evident from the transcript (vide PN4973) this is total discrimination on the part of Commissioner, Wilson.” 74

[97] In context, the complaint made by Ms Joseph does not take account of the circumstances in which it was given and misrepresents the caution given to her. It also overlooks that a similar caution was given twice to Ms Gravatt, the Respondent’s only witness so far. 75

[98] The caution given to Ms Joseph arose in the following circumstances in which Ms Joseph was under cross-examination by Counsel for the Respondent, Ms Forsyth, and sought a break in giving evidence before answering a question;

“MS FORSYTH: Yes. Thank you, Commissioner.

On the basis that the respondent says that the probationary period was a six-month probationary period, Ms Joseph, what I'm putting to you is that your termination date, being 25 June 2014, was not the last day of your probation period. Do you accept that? The last day of your probation period would have been 17 August 2014. Do you accept that?---Can I have five minutes, please?

THE COMMISSIONER: Why do you want that break?---I don't feel good.
All right. I'll give you that break, Ms Joseph, but I'm going to caution you that you must not discuss your evidence with any person, including with Mr George?---Yes.

You are still under cross-examination, so you may - we will take a short break, but when we return, the question will be put back to you and I need to reinforce that you are not to speak to anyone about the evidence that you've given or the evidence that you might be about to give. Do you understand that?---Yes.

In that case we will break for five minutes. We will resume at about 12.43.
SHORT ADJOURNMENT [12.36 PM]
RESUMED [12.44 PM]” 76

[99] The context of the question above is a line of questioning from Ms Forsyth in relation to a contention made by Ms Joseph that she was dismissed on the last day of an applicable probationary period, a contention which is strongly denied by the Respondent. Ms Joseph, as recorded above, did not answer the question and then ask for a break, rather she chose to not answer the question that had been put to her, and did not say that she needed a break, but rather asked in response to the question “[c]an I have five minutes, please?”. The fact that the Applicant did not wish to answer the question without a break is unusual, and potentially a matter that goes to her credit as a witness.

[100] The further context to this matter, and the Commission’s decision to allow the break, but issue a caution to the witness, is an earlier body of evidence given by the Applicant during cross-examination in the proceedings on 11 March about whether her signature appeared on an induction document or not. At first, Ms Joseph agreed it was her signature on the document after a question from Counsel for the Respondent;

“I'm now going to finalise this part of your evidence before taking you to the incident on 20 June by providing you with a copy of your employee induction checklist. Is this the employee induction checklist that you signed at the time of your induction to Plenty Valley Community Health?---Yes.” 77

[101] As a result of this identification, the document was sought to be tendered by the Respondent as Exhibit A8, which was allowed over Mr George’s objection.

[102] Shortly after the tendering of the exhibit, there was a break in proceedings after which cross-examination of the Applicant resumed. Immediately upon return from the adjournment, Ms Joseph returned to the document denying that the signature on the document was in fact hers. She then proceeded to give this evidence;

“MS FORSYTH: Certainly. Ms Joseph, you have in front of you what I understand was identified by you earlier to be the employee induction checklist that you signed during your employment with the Plenty Valley Community Health Service?---No, I didn't sign any.

I think your earlier evidence was also that you signed it at the time of commencing your employment as a casual at Newton House on 24 January 2011?---No, I didn't sign that day.” 78

[103] Further, Ms Joseph gave the following evidence;

“MS FORSYTH: Certainly. Ms Joseph, I may try one more time with that line of questioning and then leave it. I understand your earlier evidence was that you signed this document on 24 January 2011 or thereabouts when you commenced employment as a casual employee at the Newton House facility back in 2011?---No, this is not.

And on what basis do you say this was not now the document that you earlier said you'd signed? What do you say is not – this is your signature, is it not, on the document?---No, it is not my signature.

Ms Joseph, are you suggesting that this document has been doctored in some way, are you, by the respondent? Because if you are that is a serious allegation.

MS JOSEPH: I don't know. That's not my name and this is not my signature.

Ms Joseph, I'll put it to you for a final time that Mini Joseph is your name?---Yes.

And in fact that is your signature displayed under both the signature - - -?---Yes.

- - - recorded on this document. Is that right?---This is not my signature.

Who then do you say has signed that document?---Pardon?

Who then do you say has signed that document?---I don't know.

Under employee initial, what do you say about that initial?---I don't know.” 79

[104] The context of the caution being given to Ms Joseph about what she should not do during a break from cross-examination on 17 March is plainly not separable from the context of the foregoing changed evidence given immediately before and after a break from cross-examination on 11 March. In changing or correcting her evidence on 11 March, for whatever reason, and whether or not following discussion with any person, leaves her open to a submission from the Respondent about her credit and reliability as a witness. In that context, it would be imprudent for the Commission to not have issued the caution it did, within the context in which the request for a break arose.

[105] The caution that was put by the Commission to Ms Joseph does not say or imply that she may not go to the toilet. I take into account that both Ms Joseph and Mr George have asked for clarification of numerous matters in the determinative conference to date, and have often raised questions of objection or clarification. No complaint was made before or after the break that the effect of the caution was to limit Ms Joseph from going to the toilet. No question of clarification was asked. In this context, the fair minded observer is unlikely to accept as accurate Ms Joseph’s submission that she interpreted the caution as limiting her in this regard.

[106] Ms Joseph also advances the proposition that preference was given to Ms Gravatt by allowing her a break. It should firstly be said in relation to such proposition that Ms Joseph was provided with a break when she asked for one and so a question of preference cannot arise in relation to the proposition that Ms Gravatt was allowed a break. Secondly, although Ms Joseph’s reference to Ms Gravatt being given a break is uncertain as to what it refers to, it appears to be at a point in Ms Gravatt’s evidence in which I offered her one because she looked uncomfortable. A break at that time was not taken, and the situation resolved by opening the door to the hearing room to improve the circulation of air. 80

[107] The fair minded observer would not likely see these actions as the exhibition of anything other than a precaution to ensure the quality of the evidence being given, and to ensure that the witness did not, through inadvertence, leave themselves open to a cross-examination about their diminished credit, having spoken to their adviser or other witnesses during a break.

Paragraph 16 - concerns relating to preparation of the transcript

[108] Ms Joseph also expresses concerns that the transcript prepared for the matter is incomplete in respect of the Applicant’s material, but not so for that of the Respondent.

[109] On 7 May 2015, the Applicant wrote to my Chambers complaining about the state of the transcript, and on the same day she was advised that neither my Associate nor I have any involvement in the preparation of transcript, which is instead undertaken through a contractor to the Fair Work Commission, the Merrill Corporation. Ms Joseph was advised by my Associate that any complaints which a party wishes to make about the quality of the transcription should be directed to the General Manager of the Fair Work Commission. It is my understanding that Ms Joseph has been in touch with the Office of the General Manager and that she has, as a consequence, been provided with a copy of the audio files for the four dates on which proceedings had been held up to that point.

[110] No issue of apprehended bias arises in relation to this aspect of Ms Joseph’s complaint.

Conclusion

[111] For the reasons set out above, it is unlikely that the fair minded observer of the proceedings thus far would form the view that the Commission as presently constituted would make a deviation from the course of deciding the case on its merits. The matters raised by Ms Joseph are either general in nature, and are features of entirely normal practice on the part of the Commission; or where specific, not capable of rising to the things she claims. Even in aggregation the matters she advances do not indicate a disposition on the part of the Commission to decide her matter on any basis other than the merits of the case.

[112] In considering her application that I disqualify myself, I am also mindful that this may well be an application that would otherwise be featured by what the High Court said should be guarded against, when Mason J held;

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.” 81

[113] This case still has some distance to travel in its evidential base. The Respondent’s contention in its letter of dismissal is that Ms Joseph was “observed grabbing a client around the shoulders and eventually around the neck as you tried to move the client away from a desk”. Ms Joseph strenuously denies that allegation, repeatedly putting another version in her evidence. Ms Gravatt’s responses to questions from me makes plain that her evidence is that she saw those things. Ms Joseph is yet to fully put her version to Ms Gravatt, or to challenge in detail Ms Gravatt’s recollection of what she saw. Ms Gray, who is the other witness present at the time of the alleged misconduct, is yet to give any oral evidence.

[114] These matters involve important questions of witness evidence, and ultimately the credit of Ms Joseph, or one or more of the Respondent’s witnesses.

[115] The application for my recusal having been made after Ms Joseph concluded her evidence and before Ms Joseph’s version of events was put to Ms Gravatt gives rise to the possibility that the timing of the application was for the collateral purpose referred to above.

[116] Such possibility reinforces that it would be inappropriate to accede to Ms Joseph’s application.

[117] As a result of the foregoing analysis, Ms Joseph’s application that I disqualify myself from hearing her application for unfair dismissal remedy fails and is dismissed. The matter will remain listed before me, and will proceed by way of determinative conference on 27 May 2015 and with the continuation of the Directions already given to the parties.

COMMISSIONER

Appearances:

Ms M Joseph and Mr B George for the Applicant

Ms A Forsyth (of Counsel) and Ms A Prpich (solicitor) for the Respondent

Hearing details:

2015.

Melbourne:

22 May

 1   Attached to the Application for Unfair Dismissal Remedy

 2   PR557877

 3   PR561846

 4   Transcript, PN 5464

 5   Exhibit A11

 6   Document MFI 2

 7   Transcript, PN 6092 - 6093

 8   Fair Hearings Practice Note, Practice Note 2/2013, see   Ibid, para 7

 10   see   Viavattene v Health Care Australia[2013] FWCFB 2532, at [21] - [30]

 12 (2003) 134 IR 379, at [109]

 13 (2005) 141 IR 438, at [78]

 14 (1986) 161 CLR 342, p 352, per Mason J

 15   R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v NSW. Bar Association (1983) 151 CLR 288

 16   Ibid, p 352

 17 (1969) 122 CLR 546, p 553, per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer, Owen JJ

 18 (1990) 170 CLR 70, p 100, per Gaudron and McHugh JJ

 19 (2003) 134 IR 379, at [107]

 20 (2005) 141 IR 438, at [76]

 21 (2000) 201 CLR 488

 22   Ibid, p 492, per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ

 23 (2000) 205 CLR 337, at p 344, per Gleeson CJ, McHugh, Gummow and Hayne JJ

 24 (2000) 201 CLR 488, p 493

 25 (1983) 151 CLR 288

 26   Ibid, pp 293-294

 27 (2000) 205 CLR 337, p 345

 28 (2005) 141 IR 438, at [79] and [84], per Ross VP, Hamilton DP, Gay C

 29   [2011] FWA 672, at [11], per Watson VP

 30   Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Association of Professional Engineers, Scientists and Managers, Australia, 2013 FWC 4034, at [33], per Bissett C

 31 (1969) 122 CLR 546

 32 (1992) 42 IR 352

 33 (2005) 141 IR 438

 34   Ibid, at [61] - [63]

 35   [2014] FWCFB 7813

 36   Ibid, at [19] - [27]

 37   [2013] FWCFB 453 [28 - 29

 38 [2013] FCAFC 148

 39   Ibid, at [118] - [119]

 40   Ibid, at [137]

 41 (2000) 205 CLR 337, p 345

 42   Exhibit A12, para 3

 43   ibid, para 5

 44   ibid

 45   ibid, para 6

 46   ibid, para 9

 47   ibid, para 12

 48   Ebner v Official Trustee (2000) 205 CLR 337, p 345

 49 (2000) 201 CLR 488, p 493, per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ

 50   Ibid, p 508, per Kirby J

 51   Exhibit R13

 52   Transcript, PN 4009 - 4011

 53   Exhibit R13, para 67

 54   Transcript, PN 4013

 55   Transcript, PN 4022 and 4032

 56 (2011) 192 FCR 78, at [25]

 57   Transcript, PN 822 and 914 - 949

 58   Transcript, PN 2865 - 3049

 59   Transcript, PN 410

 60   Transcript, PN 401

 61   See Transcript, PN 36 - 439

 62   [2014] FWCFB 5390

 63   Ibid, at [25] - [28]

 64   Exhibit A12, para 6

 65   See S. Odgers SC, Uniform Evidence Law, Eleventh Edition, Sydney, Thomson Reuters, 2014; at 1.2.3140 - 1.2.3150

 66   Coal and Allied Services v Lawler (2011) 192 FCR 78, at [25]

 67   See Fair Hearings Practice Note, para 29; see also Re JRL; Ex parte CJL (1986) 161 CLR 342, p 352

 68 (2000) 201 CLR 488, p 493

 69   [2014] FWCFB 7813, at [29] - [30]

 70   Johnson v Johnson (2000) 201 CLR 488, p 508, per Kirby J

 71   Exhibit A12, para 9

 72   Transcript, PN 6007 and 6038

 73   Fair Hearings Practice Note, Practice Note 2/13, see Attachment 1

 74   ibid, para 12

 75   Transcript, PN 4313 and 5725

 76   Transcript, PN 3116 - 3121

 77   Transcript, PN 1652

 78   Transcript, PN 1693 - 1694

 79   Transcript, PN 1703 - 1712

 80   Transcript, PN 4973 - 4979

 81   Re JRL; Ex parte CJL (1986) 161 CLR 342, p 352

Printed by authority of the Commonwealth Government Printer

<Price code G, PR567789>